As a Miami immigration lawyer, I often receive questions about the I-601A provisional waiver, as well as the “Reason to Believe” standard. Below are some commonly asked questions.

What is the I-601A provisional waiver?

About one year ago, the USCIS announced that certain people who entered the United States without inspection could proactively apply for a waiver for unlawful presence. Enter the I-601A. The I-601A was created for cases wherein the qualifying family member who would suffer extreme hardship was a U.S. citizen, and where the only infraction or ground of inadmissibility was one entry to the United States without authorization.

Under what circumstances does an applicant apply for an I-601A waiver?

If an applicant needs to depart the United States in order to attend an immigrant visa interview, he/she can apply for a I-601A waiver. The benefit to the applicant is that under the current system of unlawful presence waivers, families of United States citizens risk lengthy separations because the application cannot be submitted until after the immigrant visa interview. This means that the family will be separated while they wait for a decision to be made. This process can take months. If the waiver is not approved the family could be separated for 10 years.

The I-601A provisional waiver process reduces the risk of long-term separation by allowing families to apply for the unlawful presence waiver before departing the United States.

Have applicants been experiencing issues with getting their I-601A waivers approved?

Yes. As a Miami immigration attorney, I have heard stories of clients being denied their I-601A waivers for seemingly minor issues, including driving without a license, or a juvenile conviction for disorderly conduct, for example.

What is the “reason to believe standard?”

Put simply, the “reason to believe” standard is a USCIS standard that sets forth the following – if the USCIS has a “reason to believe” that the applicant could be inadmissible under criminal grounds (again, some of these “criminal grounds” can be small and seemingly insignificant) – the USCIS reserved the right to  refuse adjudication of the I-601A waiver.As a Miami immigration lawyer, this phenomenon was  particularly frustrating, because many of these minor criminal issues were not something that required a waiver.

What positive changes have taken place with regard to the “reason to believe” standard?

The USCIS made a new policy announcement on the “reason to believe” standard. However, it is important to note that this only applies to crimes involving moral turpitude and juvenile controlled substance offenses:

“If, based on all evidence in the record, it appears that the applicant’s criminal offense: (1) falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I- 601A adjudication, or (2) is not a CIMT under INA section 212(a)(2)(A)(i)(I) that would render the applicant inadmissible, then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview solely on account of that criminal offense. The USCIS officer should continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful presence waiver, including whether the applicant warrants a favorable exercise of discretion.

“In other words, if the criminal activity was a juvenile offense or classifies as a petty offense, there is no longer a “reason to believe” that a waiver for criminal grounds would be needed.

If you think would like more information on the I-601A waiver or the “reason to believe” standard, please contact Miami immigration attorney Michael G. Murray, Esq. at (305)895-2500 or visit our website at www. 

Coronavirus update: We are safely open for business! USCIS is still accepting new filings for all applications. Our office is offering virtual consultations for new clients so that you don't have to come to our office in person. Call us to schedule your virtual meeting today.
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